1

IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT

OF PENNSYLVANIA

FRANCISCO PEREIRA, on behalf of :himself and all others similarly :situated, :

:Plaintiff, : CIVIL ACTION

:v. : No. 07-cv-2157

:FOOT LOCKER, INC.; DOES 1 through :10, inclusive, :

:Defendants. :

MEMORANDUM and ORDER

Joyner, J. September 11, 2009

Before this Court are Plaintiff’s Motion for Conditional

Collective Certification pursuant to 29 U.S.C. § 216(b) (Doc. No.

53), Plaintiff’s Motion for Class Action Certification pursuant

to Fed. R. C. P. 23 (Doc. No. 50),

Background

Plaintiff filed this action in the Eastern District of

1Defendant Foot Locker, Inc., includes stores branded “Foot Locker,”“Lady’s Foot Locker,” “Kid’s Foot Locker,” and “Foot Action.”

2

Pennsylvania on May 25, 2007, alleging that Defendant Foot

Locker,1 had violated the Fair Labor Standards Act (“FLSA”), 29

U.S.C. § 201, et seq., the Pennsylvania Minimum Wage Act of 1968

(“PMWA”), as amended 43 Pa. C. S. C. § 333.101, et seq., and the

Pennsylvania Wage Payment and Collection Act (“PWPCA”), 43 Pa. C.

S. A. § 260.1, by not compensating workers for hours

worked and not compensating for overtime. Generally, Plaintiff

alleges that Defendant has a central policy of strictly enforcing

restricted hours budgets that are not adequate to do the work of

the store. Specifically, Plaintiff alleges that time spent pre-

opening and post-closing, doing necessary work for the

maintenance of the store, is not compensated and employees are

required to work off-the-clock or have their time shaved in order

to do this work. Plaintiff alleges that Defendants enforced the

policy by directly tying the compensation of the store managers

to meeting the unrealistic labor budget set by Foot Locker

corporate and by punishing managers for “going over” the

insufficient budget. Defendant vigorously denies the

allegations.

Plaintiff Pereira formerly worked at numerous Foot Locker

stores under four different managers. In his declaration, he

attests that he was not compensated for pre-opening and post-

3

closing work because his manager was forced to stay within his

restricted labor budget. Plaintiff’s Complaint alleges both

federal and state violations as follows: Count I: Failure to pay

Plaintiff and each member of the nationwide class for all hours

worked and failure to pay overtime compensation in violation of

FLSA, 29 U.S.C. §§ 206, 207; Count II: Failure to compensate

Plaintiff and each member of the nationwide class for all time

worked off-the-clock and for shaved time, at a rate at least

equal to the federal minimum wage; Count III: Failure to pay

Plaintiff and each member of the Pennsylvania class for all of

hours worked in violation of 43 P.S. § 333.104(a); Count IV:

Failure to pay overtime to Plaintiff and each member of the

Pennsylvania class in violation of 43 P.S. §333.104() and 34 Pa.

Code § 231.41; Count V: Failure to pay Plaintiff and all members

of the Pennsylvania class all wages due to them as required by

Pennsylvania Labor Laws, in violation of 43 P.S. § 260.3 and 43

P.S. § 260.5. Plaintiff has pled jurisdiction for the FLSA

claims under 28 U.S.C. § 1331 and under 28 U.S.C. §1367 for the

state law claims. Three additional Plaintiffs have filed

declarations opting-in to the action.

Discovery has been active in the case and Plaintiff has

provided the Court with declarations, time sheets, sales records,

internal complaints, internal documents and depositions. In its

defense, Foot Locker has challenged Plaintiff’s evidence with

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numerous declarations of putative plaintiffs who claim never to

have worked off-the-clock or had their time shaved, as well as

evidence of company policies, records of discipline, and time

sheet evidence refuting that of the Plaintiff. The present

Motions for Conditional Collective Certification and Class Action

Certification were filed in September 2008, and parties have

continued to submit briefs, declarations and evidence in the

matter, with and without the Court’s leave, through July 20,

2009.

Standard

Conditional Collective Certification

As Plaintiff has moved for conditional collective

certification under FLSA, it is this Court's "managerial

responsibility to oversee the joinder of additional parties to

assure that the task is accomplished in an efficient and proper

way." Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 170-171

(1989). “The Court has the power to authorize notice in

collective actions in order to set time limits for various pre-

trial steps and to avoid a multiplicity of duplicative suits.”

Lugo v. Farmer’s Pride, No. 07-0749, 2008 U.S. Dist. LEXIS 17565,

at *6-7, 2008 WL 638237 (E.D. Pa. March 7, 2008) (citing Hoffman-

LaRoche, 493 U.S. at 171-173). Actions brought under the FLSA

are collective actions, and “[n]o employee shall be a party

plaintiff to any such action unless he gives his consent in

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writing to become such a party and such consent is filed in the

court in which such action is brought.” 29 U.S.C. § 216(b).

Pursuant to the FLSA, there are two requirements for

potential plaintiffs to be included in the collective action:

plaintiffs must (1) be "similarly situated" and (2) give written

consent. 29 U.S.C. § 216(b). Courts engage in a two-step

inquiry to determine whether class members are similarly situated

for purposes of Section 216(b) of the FLSA. Harris v. Healthcare

Servs. Group, Inc., No. 06-2903, 2007 U.S. Dist. LEXIS 55221, at

*6, 2007 WL 2221411 (E.D. Pa. July 31, 2007) (citations omitted).

The first step is assessed early in the litigation process when

there is minimal evidence and places a relatively light burden on

plaintiffs to show that potential opt-in plaintiffs are

“similarly situated.”

22701017

(E.D. Pa. Nov. 13, 2003). When discovery is complete, a more

fact-specific second-stage inquiry occurs into whether the

proposed opt-in class is, indeed, similarly

The FLSA does not define the term “similarly situated” and

neither the United States Supreme Court nor the Third Circuit

provide direct guidance on determining whether potential class

members are similarly situated. In the absence of definitive

precedent, district courts in the Third Circuit have developed a

two-stage test. Bishop v. AT&T Corp., 256 F.R.D. 503, 507 (W.D.

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Pa. 2009) (citing Kronick v. Bebe Stores, No. 07-4514, 2008 U.S.

Dist. LEXIS 78502, at *1, 2008 WL 4546368 (D.N.J. Oct. 2, 2008)).

However, courts in our Circuit differ as the requirements of the

first stage. "Some courts have determined that plaintiffs need

merely allege that the putative class members were injured as a

result of a single policy of a defendant employer." Bosley v.

Chubb Corp., No. 04-cv-4598, 2005 U.S. Dist. LEXIS 10974, at

*7-9, 2005 WL 1334565 (E.D. Pa. June 3, 2005) (citing Goldman v.

RadioShack, No. 03-cv-0032, 2003 U.S. Dist. LEXIS 7611, at *27,

2003 WL 21250571 (E.D. Pa. Apr. 16, 2003); Felix de Ascencio v.

Tyson Foods, 130 F. Supp. 2d 660, 663 (E.D. Pa. 2001); Sperling

v. Hoffman-La Roche, 118 F.R.D. 392, 407 (D.N.J. 1988), aff'd on

other grounds, 862 F.2d 439 (3d Cir. 1988), aff'd, 493 U.S. 165

(1989)). While, "[o]ther courts have applied a stricter,

although still lenient, test that requires the plaintiff to make

a ‘modest factual showing’ that the similarly-situated

requirement is satisfied." Bosley, 2005 U.S. Dist. LEXIS 7611,

at *8-9 (citing Dybach v. Florida Dep't of Corrections, 942 F.2d

1562, 1567-68 (11th Cir. 1991); Mueller v. CBS, Inc., 201 F.R.D.

425, 428 (W.D. Pa. 2001

due to the amount of

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discovery that has taken place. At this point in the litigation,

Plaintiff has

In its Motions and Declarations,

Plaintiff has submitted discovered time sheets, internal employee

complaints, depositions of Foot Locker employees, communications

between Foot Locker Managers and District Managers, emails

between District Managers and Foot Locker Human Resources, hours

budgets for individual stores, and a Foot Locker Manager

Reference Guide. Plaintiff has also complied with Defendant’s

discovery requests as to depositions and documents. However,

despite its extent, discovery has not yet been completed and

notice has not been sent to putative class members.

in this matter.

parties requested a status conference thirty (30)

days after this Court’s ruling on the instant Motions to discuss,

inter alia, dates for additional discovery. Thus, this Court is

faced with a unique situation wherein extensive discovery has

been undertaken, but has been limited to a cross section of the

universe of discovery and has not yet closed.

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As the second stage of conditional certification typically

requires a “full factual record,” we decline to eliminate the

second stage of this two-stage process and perform the full

analysis at this time. Ingram v. Coach USA, Inc., 2008 U.S.

Dist. LEXIS 5935, at *14-16, 2008 WL 281224 (D.N.J. Jan. 28,

2008) (analyzing the motion for conditional certification under

the first stage even though depositions, affidavits, declarations

and other documents had been provided); Bishop, 256 F.R.D. at 507

v. Wal-Mart, Inc., No.

00-3184, 2004 U.S. Dist. LEXIS 12441, at *13-14, 2005 WL 1497709

(E.D. La. July 2, 2004) (performing first and second stage

analysis together after close to four years of related

litigation, live testimony as to certification and six amendments

to the Complaint). While we agree that discovery is beyond its

initial stages, we do not find that enough discovery has been

performed to justify a second step inquiry when the discovery up

to this point represents a fraction of what would constitute full

discovery in this matter. We do find, however, that due to the

amount of discovery in the present matter, it is more appropriate

to evaluate the conditional collective certification motion under

the stronger “modest factual showing” standard. Bishop, 256

F.R.D. at 507.

At this first

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’” Bouder v. Prudential Fin., Inc., No.

2008 U.S. Dist LEXIS 25103, at * 7, 2008 WL 3396303 (D.N.J.

March 27, 2008) (quoting Herring v. Hewitt Assocs., Inc., No. 06-

267, 2007 U.S. Dist. LEXUS 53278, 2007 WL 2121693, at *3 (D.N.J.

July 27, 2007) (citations omitted)). The court inquires into

whether “the plaintiff’s proposed class consists of similarly

situated employees who were collectively, ‘the victims of a

single decision, policy, or plan . . . .’” Lugo,

merits of Plaintiff’s claims do not

need to be evaluated at this stage in order for notice to be

approved and sent out to proposed conditional collective action

members; this Court evaluates only whether the Plaintiffs are

similarly situated. Lugo, 2008 U.S. Dist. LEXIS 17565 at *9;

Harris, U.S. Dist. LEXIS 55221, at *3. It should be

emphasized, however, that though the test requires a “modest

factual showing,” it is “nevertheless[,] an extremely lenient

standard.” Parker, 2008 U.S. Dist. LEXIS 74896, at *5; Smith,

2003 U.S. Dist. LEXIS 21010, at * 1. Thus, this Court will

conduct a first stage conditional certification inquiry as to

whether Pereira and opt-in Plaintiffs are similarly situated with

respect to the proposed class.

2“Most courts, ours included, have not been methodical in their use ofthe terms ‘class action’ and ‘collective action.’ The result is that numerouscases about FLSA ‘collective actions’ use the Rule 23 term ‘class action.’Here, we will quote cases that use the terms interchangeably, and we willrefer to members of a ‘collective action’ as part of a ‘class,’ but we willindicate where our analysis is limited to collective actions.” In Ruehl v.Viacom, Inc., 500 F.3d 375, 379, n.3 (3d Cir. 2007).

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Discussion

I. Conditional Collective Certification

A. Plaintiff’s Proposed Conditional Collective Class and FootLocker’s Alleged Policy

Plaintiff argues that the proposed class2 is similarly

situated and should consist of

All persons, who are/were employed as RetailEmployees, excluding persons with the title of“Assistant Manager,” with the Company; (ii)are/were not paid for all the hours worked in agiven workweek; (iii) are/were not paid overtimecompensation at a rate not less than one and one-half times their regular rate for each hour workedbeyond forty (40) hours during a work week; and(iv) chose to opt in to this action (the “NationalCollective Class”).

First, Plaintiff contends that he is similarly situated to the

putative class because he worked from 2002 to 2005 and again from

2006 to 2008 as a non-exempt Retail Employee for Foot Locker at

numerous stores under four managers. Plaintiff claims in his

he was routinely required to work off-the-clock

at all of his work locations under multiple different managers

and that his managers also regularly “shaved” his time by cutting

his recorded hours worked after the fact. Williams Decl., Exh.

G. Three additional opt-in Plaintiffs, who worked in the

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alleges that this treatment was not due to a renegade manager,

but due to a Foot Locker policy that imposes strict, but

insufficient labor budget on its managers, such that

To support this FLSA class claim, Plaintiff posits that Foot

Locker is centrally organized and directed by its corporate

headquarters in New York, New York. Additionally, Plaintiff

alleges that hours budgets are set by Foot Locker corporate and

are plainly inadequate to staff the store in the pre-opening and

post-closing tasks. Plaintiff contends that managers who go

“over” their hours allocation were disciplined by a

. For instance, one letter submitted by Plaintiff

Plaintiff also contends

that corporate controls the unwritten policy because a manager’s

pay depends, at least in part, on meeting these unrealistic hours

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targets. Finally, Plaintiff alleges that within Foot Locker’s

(SAP Campbell timekeeping system)

it is impossible to punch in before pre-opening or punch out

post-closing, even though there is work that specifically must be

performed while the store is closed, such

t is then the manager’s responsibility to go back into the

system to account for this time for the

In support of his allegation that Foot Locker has a

concerted policy, Plaintiff has submitted his own declaration of

his experience Locker stores and three additional

declaration of opt-in Plaintiffs, as well as a great variety of

additional documentation. First, Plaintiff points to logs from

the timekeeping system that purport to show that employees’ punch

out times were altered by managers to coincide with the store

closing. Williams Decl., Exh. VV. Second, Plaintiff has

submitted records from Foot Locker’s timekeeping system that,

Plaintiff alleges, demonstrate that many putative class members

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performed thousands of sales transaction while not clocked in –

demonstrating off-the-clock work. Williams Decl., Exh. F.

Third, Plaintiff submitted

work

and time shaving by managers to stay within the labor budget.

Williams Decl., Exhs. W-UU. Fourth, Plaintiff has submitted

additional individual time sheets from individual

, Plaintiff alleges, show that retail

employees regularly punched out when the store was closed to

customers, but still had to closed out registers, resulting in

off-the-clock work that was never

. O, Palardy Dep., 120:13 - 121:9. Finally, Plaintiff

submitted stern letters and other documents from Foot Locker

management to store managers who had gone over the hours budget.

policy.

The

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C. Defendant Foot Locker’s Arguments in Opposition

Defendant contends that Pereira and the putative class are

not similarly situated in their positions and that Plaintiff has

not made the requisite factual showing, but has instead, relied

on mere speculation. First, Defendant argues that the putative

class members have a variety of different job descriptions and

work in various capacities, under different managers at locations

all over the country. Thus, Foot Locker argues, the putative

class members have had a variety of experiences that may

contradict Plaintiff’s allegations and, as such, Plaintiff is not

similarly situated. To illustrate this, Defendant has provided

affidavits from putative class members that directly refute

Plaintiff’s allegations and detail the individualized

circumstances of each person as to their experience with

managers. "While this evidence may be significant after

discovery and during step two of the process, at this stage, it

does not compel us to deny preliminary certification." Bosley,

2005 U.S. Dist. LEXIS 10974, at *12-13. See also Felix De

Ascencio, 130 F. Supp. 2d at 663 (finding that detailed

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declarations and other information provided by Defendant was more

suitably reviewed in step two of the certification). The

putative class consists of non-exempt Foot Locker employees,

for each store is different depending on its’

location and sales volume, the time keeping system is uniform

throughout the stores,

and

communicates with managers in this regard. See Lockhart v.

Westinghouse Credit Corp., 879 F. 2d 43 (1989) (holding that

class members in various locations did not invalidate a

collective action). Based on these components, Plaintiff has

alleged a general policy that would have affected all non-exempt

employees, regardless of their location or exact title. Thus, we

will reevaluate any dissimilarities in work description in the

second stage of class certification, when the impact or scope of

the alleged policy is more complete. Kuznyetsov v. West Penn

Allegheny Health System, No. 09-0379, 2009

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Defendant then argues that the inquiry into off-the-clock

and overtime payments would be too individualized for class

treatment and that Plaintiff has not identified a uniform policy,

plan or scheme as required by the standard for collective

certification. Specifically, Defendant contends that each

assessment of off-the-clock work or unpaid overtime would be

dependant on the employee him or herself, as well as the

individual manager, and not reflective of any overall policy.

Defendant cites to Diaz v. Electronics Boutique of America, No.

04-840, 2005 U.S. Dist. LEXIS 30382, at *15, 2005 WL 2654270

(W.D. N.Y. Oct. 17, 2005), in support of this contention.

However, in Diaz, the plaintiffs had allegedly only that

“overtime work must be approved and, thus, [Defendant] had a

policy of not paying for overtime work.” Id. As noted by that

Court, absent was any concrete assertion or detail of a uniform

plan or scheme that deprived employees of overtime. Id. While

Defendant in the instant case likens Plaintiff’s allegations to

those in Diaz, we cannot find the two comparable. Plaintiff in

the instant case has specifically alleged that Foot Locker had a

policy of scheduling an hours budget for each store that was

inadequate for the store’s work to be performed, that employees

were not allowed to sign in outside store hours and that

manager’s pay, and potentially their jobs, were dependant upon

staying within the insufficient hours budget.

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Defendant also heavily relies on Basco v. Wal-Mart Stores,

Inc., No. 00-3184, 2004 U.S. Dist. LEXIS 12441 (E.D. La. July 2,

2004), another case outside of our Circuit involving similar

allegations to the instant case where certification was denied.

It should first be noted that, overall, the Court in Basco was

performing a first and second step review of conditional

certification due to completed discovery. Id. at 14. However,

in singularly assessing the first step of the collective

certification inquiry, the Court did find that the evidence

supplied did not support the existence of a single policy or plan

because it was too individualized. However, in support of its

Motion, Plaintiffs in Basco had offered, in total, a Customer

Service Scheduling System, affidavits from the seven Plaintiffs,

testimony from five employees stating that they had worked

without overtime pay and a description of the bonus incentive for

store managers. Id. at 18-22. Conversely, Pereira has

additionally

the country, stern and direct

correspondence to managers about going over the allotted hours,

hours budgets for individual stores and evidence of time shaving

and off-the-clock sales and cash outs from around the country.

Thus, while recognizing that individual concerns may at

or plan and demonstrated its

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alleged consequences nationwide. Defendant’s claim or defense

that Plaintiffs’ claims are too individualized to be litigated

collectively are “relevant to

2008 U.S. Dist. LEXIS 43722, at *28 (M.D. Pa. May 30,

2008) (“ . . . [E]vidence offered by defendant purporting to show

plaintiffs are not similarly situated to absent class members,

while significant after discovery during the step-two analysis,

does not compel denial of conditional certification.”).

Defendant also points mightily to its policies and

procedures in place against off-the-clock work and time shaving

to refute Plaintiff’s allegations. However, in this initial

stage, such policies are not dispositive of collective

certification and this Court will not deny certification based on

evidence of Defendant’s official policy against such work.

Chabrier v. Wilmington Finance, Inc., No. 06-4176, 2006 U.S.

Dist. LEXIS 90756, at *9, 2006 WL 3742774 (E.D. Pa. Dec. 13,

2006).

Finally, Foot Locker argues that the time sheets, punch data

and sales time analysis proffered by Plaintiff are misleading and

that Plaintiff has ignored “earnings data” that would refute

Plaintiff’s theory that sales were made after employees had

punched out of the system. Defendant also offers several

3Defendant claims that Plaintiff has not accounted for: transactionslinked to employees not present at the time of the transaction, non-commissioned associates crediting their sales to other associates and thepayroll reconciliation period.

4Plaintiff claims an additional three (3) complaints were filed betweenthe original filing and the filing of the Reply Brief on March 3, 2007.

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explanations for the sales being clocked after an employee had

punched out.3 While these defenses and explanations may, in

fact, prove valid, we cannot find, at this stage in these

proceedings, that these explanations disclaim Plaintiff’s

evidence of off-the-clock sales. We decline to weigh the merits

of the parties’ competing theories involving off-the-clock sales

and cash outs at this time. Parker, 2008 U.S. Dist. LEXIS 74896,

at *5. Similarly, Defendant argues that the internal complaints

of off-the-clock work or time shaving from employees throughout

the county were mischaracterized by Plaintiff and do not support

collective certification. In doing so, Defendant calculates the

percentage of employees complaining of these issues to be a

minuscule, one in 400, and next provides explanations for three

of the complaints. See Sinatra Dec., Exhs. S, T and G. We agree

that the number of examples cited by Plaintiff is small in

proportion to the number of Foot Locker employees; however, at

this stage, of the

exact behaviors that Plaintiff is alleging does, in conjuncture

with Plaintiff’s other evidence, provide further “modest”

evidence of Plaintiff being similarly situated to other putative

class members.4 We cannot discount Plaintiff’s evidence of such

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complaints by weighing them substantively with Defendant’s

explanations and exploring the merits of the claim.

Overall, Defendant has provided volumes of evidence to rebut

Plaintiff’s claims and documentation which may prove that

Defendant simply policy that Plaintiff alleges.

However, while such evidence is reviewed in assessing Plaintiff’s

burden to establish that he is similarly situated, such evidence

is more appropriately substantively weighed “pursuant to a

decertification motion or a motion for summary

of Defendant’s arguments

and the evidence it has supplied invite this Court to wade into

credibility and merit determinations of Plaintiff’s claims,

analyses improper for this stage in the proceedings. “Plaintiffs

need only provide some ‘modest’ evidence beyond pure speculation

that Defendant’s alleged policy affected other employees.” Id.

(quoting Smith v. Sovereign, No. 03-2420, 2003 U.S. Dist. LEXIS

21010, at *10, 2003 WL 2270173 (E.D. Pa Nov. 13, 2003)). As

such, we grant conditional certification and will revisit this

certification at the second stage of the inquiry at the close of

discovery.

II. Cortes Plaintiffs’ Intervention in Plaintiff’s Motion forConditional Certification

On motion, this Court allowed

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intervention in the instant action by Plaintiffs of an action

filed in the Southern District of New York, Cortes v. Foot

Locker, No. 06-cv-1046, due to the potential interest that Cortes

Plaintiffs may have in the instant case as putative class

members. Cortes Plaintiffs wished to intervene in order to

object to their inclusion in the putative class. Having allowed

intervention based on their perspective interest, this Court now

assesses the Cortes Plaintiffs’ request in light of the

conditional certification of the FLSA claim.

We find that, upon conditionally certifying the putative

class, it would be inappropriate for this Court to exclude the

New York Plaintiffs from the now conditionally certified FLSA

action. Cortes Plaintiffs’ Certification Motion is now pending

before the Southern District of New York and we decline to

attempt to anticipate that Court’s decision or conceivably leave

New York Plaintiffs excluded from a nationwide class action as

whole.5 Despite the Cortes Plaintiffs’ concern that their opt-

in plaintiffs could ultimately be litigating their FLSA and state

law claims in two fora, we cannot whole-cloth exclude all New

York Plaintiffs from notice in the instant action based on

possible future certification of both federal and state classes

in New York. Additionally, as FLSA actions are opt-in, not opt-

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out, actions, it would be further attenuated to exclude them from

nationwide notice based on a potential interest or harm that may

come if they affirmatively choose to opt-in to the present

action.

Cortes action

was filed prior to the instant case, the first-to-file doctrine

advanced by Cortes Plaintiffs applies in motions to dismiss, stay

or transfer and does not apply here to simply exclude certain

plaintiffs from a class. Allianz Life Ins. Co. of N. Am. v.

Estate of Bleich, No. 08-668, 2008 U.S. Dist. LEXIS 90720, at *7,

2008 WL 4852683 (D.N.J. Nov. 6, 2008) (citing Keating Fibre

Intern., Inc. v. Weyerhaeuser Co., 416 F. Supp. 2d 1048,

1052-1053 (E.D. Pa. 2006) (“Consistent with these principles, the

first-to-file rule gives courts the power to stay, enjoin, or

transfer a later-filed case.”)). Thus, we decline to exclude

Cortes Plaintiffs from receiving notice in this conditionally

certified collective action.

Plaintiff has proposed a Notice and Consent to Sue Form in

its Motion for Conditional Collective Certification and has

requested that this Notice be mailed to all putative plaintiffs

and be posted at the Defendant’s store locations. Plaintiff has

proposed 120 days for putative class members to opt-in to the

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action. Defendant objects to the posting of the Notice in work

locations, the wording in the proposed Notice, and the period of

time proposed by Plaintiff. Pursuant to the district court’s

discretion to facilitate notice, we oversee the Notice and

address the Defendant’s objections in turn. See Hoffman-La

Roche, Inc., 493 U.S. at 169.

Plaintiff has requested that the Notice be posted in work

locations to ensure that Notice is effective; while Defendants

argue that this Notice would create an undue interruption in the

workplace and that Plaintiff had supplied little support for this

request. Posting Notice in the workplace of the putative class

members strikes this Court as an effective and efficient way to

ensure that potential class members are aware of the litigation.

Defendant has not detailed how a Notice in an employee section of

the workplace would

, the

mailings and the posting of the Notice in a conspicuous place in

an employee area of Defendant’s store locations provides a

balance of efficient and effective Notice dissemination. See

Sherrill v. Sutherland Global Servs., Inc., 487 F. Supp. 2d 344,

351 (W.D.N.Y 2007) (finding posting and mailings of opt-in

notices and forms to be appropriate).

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Additionally, Plaintiff has requested a 120-day time period

for putative class members to opt-in to the present action, while

Defendant finds this period unreasonable and suggests a 30 - 40

day period. We find that, in light of the potential size of the

putative class and the number of persons to be contacted, a 90-

day period is reasonable. This time period will allow potential

class members to review the Notice and, if they so choose, to

file a Consent To Sue form and opt-in to the action.

Finally, parties make a variety of arguments as to the exact

wording that should be used in the Notice itself. In some

instances, the parties have demonstrated a willingness to amend

the proposed Notice to assuage the opposing party’s concerns.

Accordingly, we direct the parties to meet and confer as to the

wording and form of the Notice and present a joint, proposed

Notice to this Court within thirty (30) days of entry date of the

Order.

IV. Inherent Incompatibility: Federal and State Law claims

Plaintiff has simultaneously moved for

, creating a potential conflict and implicating the question of

whether this Court should exercise supplemental jurisdiction over

the state law claims. While neither party has addressed the

potential incompatibility of the these Motions in their

25

respective briefs, we feel compelled to address it at this

juncture. Thus, we address the issue sua sponte based on the

jurisdictional ability of the simultaneous “classes” to move

forward together as brought squarely to this Court on the dual-

Motions for certification.

The incompatibility of federal and state parallel class

actions has been raised numerous times by district courts in our

Circuit, but the issue, in the instant carnation, has never been

addressed squarely by the Third Circuit. However, the Third

Circuit has provided direction in a related case where state law

class claims were brought under supplemental jurisdiction. In

its holding in De Ascencio, an off-the-clock hours case somewhat

factually similar to the present one, the Third Circuit held that

due to the complexities of the state law claims under the

Pennsylvania Wage Payment and Collection Act and the large

disparities in the number of state plaintiffs to federal ones,

the state law claims predominated over the federal claims and,

pursuant to Section 1367(c)(2), dismissed the state law claims.

De Ascencio v. Tyson Foods, Inc., 342 F.3d 301 (3d Cir. 2003).

While De Ascencio provides direction, it does not address

the question now before this Court. In the instant case, the

federal and state law claims greatly overlap and Plaintiff has

requested certification of both “classes” simultaneously. Both

the federal and state claims involve the same factual allegations

26

and

Hickton v.

Enter. Rent-A-Car Co., No. 07-1687, 2008 U.S. Dist. LEXIS 86604,

at *9, 2008 WL 4279818 (W.D. Pa. Sept. 12, 2008). Unlike the

claims in De Ascencio,

Additionally, the putative class proposed herein is

potentially much larger than the statewide class. Thus, the

predomination concerns identified in De Ascencio are not, at this

time, present in the instant case. The procedural posture of the

claims in De Ascencio was also distinct, in that the Court in De

Ascencio had already granted conditional certification and was

concerned that the Plaintiffs were moving for class certification

to use the state law class opt-out action as a “second line of

attack” when the federal claims “yielded a smaller than desired

federal class.” Id. at 312. However, in the instant case, the

Court is faced with certification of both the federal and state

claims simultaneously. Hence, though Plaintiff has pled the

state law claims pursuant to supplemental jurisdiction, this

Court is faced with an “inherent incompatibility” issue as to the

simultaneous certification motions, as opposed to the distinct

6

ms under supplemental jurisdiction pursuant to 28 U.S.C. § 1367 only.As the reasons laid out in De Ascencio for denying supplemental jurisdictionpursuant to § 1367(c)(2) are not present here, this Court moved to additionaljurisdictional analysis.

27

2007 WL 965835, at *7 (W.D. Pa March

29, 2007) (same); Otto v. Pocono Health System, 457 F. Supp. 2d

7

(W.D. Pa. Sept. 12, 2008)(allowing federal and state class claims to move forward despite opt-in/opt-out compatibility concerns). It should be noted that while the court inHickton allowed a lawsuit involving federal and state class claims to proceed,the state claims in that matter were alleged to have jurisdiction in federalcourt pursuant to CAFA and supplemental jurisdiction. That court explicitlyheld that, “[i]n the event that it is later determined that the court does nothave original jurisdiction under CAFA of th[e state] claim, the court woulddecline to exercise supplemental jurisdiction and the claim would bedismissed, without prejudice.”

8

28

522, 524 n. 1 (M.D. Pa. 2006) (holding that overlapping federal

and state claims would defeat Congressional intent); Herring v.

Hewitt Assocs., No. 06-267, 2006 U.S. Dist. LEXIS 56189, at

(D.N.J. Aug. 11, 2006) (same); Aquilino

29

action to proceed

simultaneously in the same lawsuit would allow plaintiffs to

“circumvent” the requirement of the FLSA action by bringing

other, unnamed Plaintiffs into the lawsuit. Ellis, 527 F. Supp.

2d at 451-52 (citing Otto, 457 F. Supp. 2d at 523) (internal

quotations omitted). This Court has previously addressed the

issue in another case involving FLSA claims and Pennsylvania

labor claims, holding that “FLSA collective actions are

inherently incompatible with Rule 23 state-law class actions, and

thus cannot be brought simultaneously in federal court under one

lawsuit.” Ramsey v. Ryan Beck, No. 07-1747, 2007 U.S. Dist.

LEXIS 56129, at *12 (E.D. Pa. August 2, 2007)

the facts and allegations in the present case are distinct

from those in Ramsey, we find that the incompatibility between

the opt-in and opt-out class rubrics remain and that “permitting

a FLSA collective action to be litigated with a Rule 23 state-law

class action would ‘nullify Congress’s intent in crafting [FLSA]

§216(b) and eviscerate the purpose of § 216(b)’s opt-in

requirement.’” Id. at *6 (quoting Otto, 457 F. Supp. 2d at 524

n. 1). Thus, Plaintiff’s state law claims cannot proceed in so

far as they overlap with their FLSA claims.

However, as the parties have not raised the issue in their

present Motions, it is unclear from the face of the Complaint

30

whether there are any state claims that are wholly distinct from

federal claims. If such a state claim exists, it could

conceivably go forward with the FLSA collective action. Woodward,

250 F.R.D. at 189 (“Where the state law claim is brought to

vindicate rights enjoying no similar protection under the FLSA,

the FLSA is not implicated.”); Brothers, 2007 U.S. Dist. LEXIS

24326, at *18-19 (finding that “Rule 23 and § 216(b) are only

incompatible to the extent that Plaintiff’s state-law claims

coincide with the FLSA action” and allowing plaintiff to pursue

an opt-out class for a claim not covered under FLSA as long as

such claims did not predominate over the federal claims). At

this stage in the lawsuit and without briefing from the parties,

it would be premature for the Court to automatically separate all

the claims in the Complaint and dismiss the state law claims as

inherently incompatible because there may be a state law claim

that is distinct from the FLSA counterpart. Thus, this Court

will revisit the Pennsylvania claims at the Motion to Dismiss

stage in order to allow sufficient investigation and briefing as

to

AND NOW, this 11th day of September, 2009, upon

consideration of the Plaintiff's Motion for Conditional

Collective Certification pursuant to 29 U.S.C. § 216(b) (Doc. No.

53), Plaintiff’s Motion for Class Action Certification pursuant

to Fed. R. C. P. 23 (Doc. No. 50), Defendant's Response in

Opposition (Doc. No. 66), Plaintiff's Reply (Doc. No. 85),

Defendant's Surreply (Doc. No. 89), Plaintiff's Rebuttal

Memorandum (Doc. No. 93), Plaintiff's Notice of Filing

Supplemental Evidence (Doc. No. 100) and Defendant's Response to

Plaintiff's Second Notice of Filing Supplemental Evidence (Doc.

No. 103), and for the reasons set forth in the attached

Memorandum, it is hereby ORDERED that Plaintiff’s Motion for

Conditional Collective Certification pursuant to 29 U.S.C.

§216(b) is GRANTED and Plaintiff’s Motion for Class Action

Certification pursuant to Fed. R. Civ. P. 23 is DENIED without

9Use and possession of the information provided by Defendant shall beused solely for the purpose of providing notice of this action to personsentitled to file Plaintiff Consent to Sue Forms.

prejudice. It is further ORDERED as follows:

1. Plaintiff’s FLSA claims SHALL proceed as conditionally

certified collective action, under 29 U.S.C. § 216(b), on behalf

of all persons who were, or are employed by Defendant throughout

the United States as non-exempt employees, including Sales

Associates, Stock Persons and Cashiers, but excluding Assistant

Managers (collectively “Retail Employees”) at any time from the

date three (3) years prior to the mailing date of the Notice to

the present.

2. Defendant SHALL produce to Plaintiff’s counsel an electronic

list, in Microsoft Excel if possible, of names and last known

addresses of all persons described above within thirty (30) days

of the entry date of this Order. Defendant SHALL further produce

to Plaintiff’s counsel within seven (7) days of any request by

Plaintiff’s counsel all telephone numbers Defendant might have

(if any) for any person described above in the collective action

whose FLSA Notice is returned by the Post Office as

undeliverable.9

3. Parties SHALL meet and confer as to the proposed wording and

form of the Notice and SHALL present a joint, proposed Notice to

this Court within thirty (30) days of the entry date of this

Order.

34

4. Following approval of Notice by this Court, Defendant shall

post a copy of the approved FLSA Notice in each of its retail

locations in an employee area in a conspicuous place for its

Retail Employees to view.

5. In order to be considered timely filed, the Consent to Sue

Form must be received and filed with this Court no later than

ninety (90) days after the date on which the FLSA Notice is

mailed by Plaintiff’s counsel.

BY THE COURT:

s/J. Curtis JoynerJ. CURTIS JOYNER, J.